A Victory for Fairness: Kusnierz v. Economica

The Court of Appeal recently considered the definition of catastrophic impairment under the Statutory Accident Benefits Schedule (the “SABS”) bringing much needed clarity and fairness to this area of law.

Robert Kusnierz was a passenger in a car left the road and rolled over. His left leg was badly injured and had to be amputated below the knee. As a result of his injuries, Kusnierz also suffered from serious psychological impairments. Under the SABS, if Kusnierz was found to be catastrophically impaired he would gain access to enhanced medical and rehabilitation benefits.

At trial, the Judge held that Kusnierz’s physical and psychological impairments could not be combined to reach the necessary threshold of 55% whole person impairment and that, therefore, Kusnierz was not catastrophically impaired. The Court of Appeal found this result unfair, noting that it would mean that people with combined physical and psychological impairments would be denied the enhanced benefits available to accident victims with similarly extensive impairments whose impairments fell entirely into one category or the other.

The Court of Appeal held that to disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the legislation, namely to ensure that the most injured accident victims have access to enhanced benefits.

The Court’s reasoning was fivefold: (i) the plain language of the SABS suggests that combining both types of impairments is permissible, (ii) the purpose of the Guides[1] supports combination, (iii) the Guides explicitly describe a number of situations in which an assessment of a person’s physical impairments should take into account resulting mental and behavioural impairments, (iv) the result is consistent with the underlying purpose of the SABS, and (v) combining physical and psychological impairments promotes fairness as all accident victims are assessed based on their actual levels of impairment in their everyday activities.

The Court of Appeal, with its ruling, has brought clarity to the definition of catastrophic impairment which was thrown into doubt by the competing lower court decisions, and returned a measure of fairness to accident victims by ensuring that an accident victim’s actual overall level of impairment will determine his or her access to enhanced benefits under the SABS.

[1] American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition 1993

For further information on this case or help determining when an impairment meets the catastrophic threshold contact D. Joel Dick at Howie Sacks & Henry where we work every day to ensure that victims of accidents get the compensation and care that they need and deserve.

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